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I have been researching the "gun laws" in NM to attempt to find if it is legal for someone to use "deadly force" to protect themselves if and when their life is endanged by a vehicle purposely driven at them
i. e. I (not me in the sense) am on my own property and someone delibertly drives their vehicle at me on my own road, can I use deadly force like using a gun to protect myself my being a victim from such an attack?

Given that I am a licensed CWL holder or even open carry...and the situation has escalated to the point that the opposite party will not head to my verbal request to not drive on my property.

The local sherrif says that I would be arrested for assualt and battery and that I can only file a complaint if my life is threated...

Not sure who your Sheriff is now but he/she needs to read the law and associated case law before giving legal advice!

From the way the OP describes the situation, it's a matter of simple trespass - not a life threatening situation - and the sheriff gave excellent advice! A homeowner cannot shoot someone for simple trespass - and if they do shoot someone, they better be able to PROVE life-threatening circumstances.

People often say that if you shoot an intruder in your home you should be sure the shooting occurs fully inside the house and not on the grounds, thereby making it easier to prove the danger posed by the intruder. Even that is over-simplification of what can be a very sticky situation that can cost the home owner nothing but grief in trying to defend their actions in a civil trial.

As for someone trespassing on private property, there are remedies in the law, such as filing a complaint and getting the court to issue a restraining order that legally gives the police arrest authority should the person violate the R.O. Violation(s) could then see the trespasser serving jail time.

Here is a quote from his post.
"I have been researching the "gun laws" in NM to attempt to find if it is legal for someone to use "deadly force" to protect themselves if and when their life is endanged by a vehicle purposely driven at them"
That does not appear to be a simple case of trespass.

Quote:

Originally Posted by joqua

From the way the OP describes the situation, it's a matter of simple trespass - not a life threatening situation - and the sheriff gave excellent advice! A homeowner cannot shoot someone for simple trespass - and if they do shoot someone, they better be able to PROVE life-threatening circumstances.

People often say that if you shoot an intruder in your home you should be sure the shooting occurs fully inside the house and not on the grounds, thereby making it easier to prove the danger posed by the intruder. Even that is over-simplification of what can be a very sticky situation that can cost the home owner nothing but grief in trying to defend their actions in a civil trial.

Let's pretend that I got lost on my GPS and I'm speeding on your road and I don't see you because I'm looking at my GPS. I also have alzheimer's, dementia, ADD, tinnitus, and don't speak English, so I have no recollection of getting warned by you about anything. I'm also on the way back from the clinic where I'm still coming down from the anaesthesia and having my eyes dilated. Do I deserve to get shot?

Also, have you ever tried to shoot somebody driving their car at you? I somehow doubt that you have any window between when you can establish that it's you they're targeting and when you can get out of the vehicle's way whether you connected with your target or not.

Supposing that you're in the right and have the ability to not only shoot the offending driver but also get out of the way of his still-speeding vehicle, and this was your only way out of this alive, does it really matter if it's legal or not?

Using yourself as bait in order to escalate a @#$% trespassing on your road to justifiable homicide is not only really passive-aggressive but also extremely hazardous to your personal health (a car in motion beats a gun). At far less risk you can achieve far greater effect by causing severe financial damage to the offending vehicle. Spike strips, chains across the road, cars blocking the road, are all far less dangerous. Once you've stopped their forward momentum, then you can use your gun (not pointing it at them but merely showing them you have it) to inform them that the next time you're booting their vehicle and having it towed.

Here is a quote from his post.
"I have been researching the "gun laws" in NM to attempt to find if it is legal for someone to use "deadly force" to protect themselves if and when their life is endanged by a vehicle purposely driven at them"
That does not appear to be a simple case of trespass.

HERE is the PERTINENT part of the OP's post:

Quote:

Given that I am a licensed CWL holder or even open carry...and the situation has escalated to the point that the opposite party will not head (sic) to my verbal request to not drive on my property.

I'm not arguing that in the case of a fatal accident, vehicles have been declared "deadly" - but rather the case that just because someone disobeys a trespass sign (or warning) doesn't mean you can simply kill them!!!

Guess we are seeing the "pertinent" part a bit differently. When he stated that the car was being driven toward him on purpose, even if he is not on his own private property, he would be justified in using deadly force to stop the threat.
A motor vehicle being driven at a person in an agressive maner is in fact a threat to life and safety.

Quote:

Originally Posted by joqua

HERE is the PERTINENT part of the OP's post:

I'm not arguing that in the case of a fatal accident, vehicles have been declared "deadly" - but rather the case that just because someone disobeys a trespass sign (or warning) doesn't mean you can simply kill them!!!

In State v. Couch, 52 N.M. 127, 137, 193 P.2d 405 (1946), the New Mexico Supreme Court recognized that one cannot defend property, other than his habitation, to the extent of killing an aggressor for the mere purpose of preventing a trespass.

Section 30-2-7A NMSA 1978 provides that a homicide is justifiable when committed in the necessary defense of property. Although this statute has been a part of New Mexico law since 1907, the New Mexico appellate courts have never given the statute a broad interpretation. The New Mexico courts have consistently held, not always referring to the statute, that one cannot defend his property, other than his habitation, from a mere trespass to the extent of killing the aggressor. State v. McCracken, 22 N.M. 588, 166 P. 1174 (1917); State v. Martinez, 34 N.M. 112, 278 P. 210 (1929); State v. Couch, 52 N.M. 127, 193 P.2d 405 (1946).

This is direct from the statute (jury instructions discussion):

14-5171. Justifiable homicide; self defense.

Evidence has been presented that the defendant killed __________________ (name of victim) in self defense.

The killing is in self defense if:

1. There was an appearance of immediate danger of death or great bodily harm2 to the defendant as a result of __________________; and

2. The defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed __________________ (name of victim) because of that fear; and

3. A reasonable person in the same circumstances as the defendant would have acted as the defendant did.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense you must find the defendant not guilty.

USE NOTE

1. For use when the self defense theory is based on: necessary defense of self against any unlawful action; reasonable grounds to believe a design exists to commit a felony; or reasonable grounds to believe a design exists to do some great bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not act in self defense".

2. The definition of great bodily harm, UJI 14-131, must be given if not already given.

3. Describe unlawful act, felony or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence.

Committee Commentary. — This instruction is a combination of the elements of self-defense contained in Subsections A and B of Section 30-2-7 NMSA 1978. The elements of the defenses originated in the Kearny Code, Crimes and Punishments, Art. 2, Sec. 1. The source of the more specific language of Subsection A of Section 30-2-7 NMSA 1978 is derived from Laws 1907, ch. 36, § 11, and the language of Subsection B of Section 30-2-7 NMSA 1978 is derived from Laws 1853-54, p. 86. The present statute was adopted in 1963, but as indicated in the report of the Criminal Law Study Committee (N.M. Legislature 1961-62), the policy was to retain the provisions of existing criminal laws wherever possible.

Although numerous New Mexico decisions deal with the principles of self-defense, few of the cases discuss the principles in terms of the statutory language. In the context of another justifiable homicide statute, Sections 40-24-12 and 40-24-13 NMSA 1953 (repealed by Laws 1963, Chapter 303, Section 30-1) the defense of a police officer to a killing of a fleeing felon, the supreme court has said that these statutes are merely a legislative recognition of the common law. See Alaniz v. Funk, 69 N.M. 164, 364 P.2d 1033 (1961). In addition, the supreme court has indicated that there is no requirement that the jury be instructed in the precise language of the statutes. State v. Maestas, 63 N.M. 67, 313 P.2d 337 (1957).

The New Mexico courts have not had occasion to catalog the unlawful actions which will allow a person to respond with a deadly force. For example, the type of felony which will allow a killing in self-defense has not been limited. See e.g., State v. Beal, 55 N.M. 382, 387, 234 P.2d 331 (1951). Cf. Alaniz v. Funk, supra. The supreme court has said that the phrase "great personal injury" means something more than a mere battery not amounting to a felony. Territory v. Baker, 4 N.M. (Gild.) 236, 264-66, 13 P. 30 (1887). There has been no attempt to define the "unlawful act" which will allow the use of deadly force, although in a related context it has been said that the use of deadly force to prevent an unlawful act not amounting to a felony is unreasonable as a matter of law. Brown v. Martinez, 68 N.M. 271, 361 P.2d 152 (1961). (The court in Brown indicates that the rules of law governing the use of justifiable force apply to both civil and criminal cases.)

In view of the decisions requiring reasonableness and fear or apprehension of death or great bodily harm, the absence of specific definitions of unlawful act, felony or act creating a great personal injury does not appear to be crucial. Regardless of how the act is characterized or identified, it must be of such a quality as to create a fear of death or great bodily harm. Thus it would appear that Subsections A and B of Section 30-2-7, supra, are redundant.

Under New Mexico law, the danger to the defendant need not be real but need only be apparent under the circumstances. State v. Chesher, 22 N.M. 319, 161 P. 1108 (1916); State v. Roybal, 33 N.M. 187, 262 P. 929 (1928); State v. Vansickel, 20 N.M. 190, 147 P. 457 (1915). The danger under the circumstances must be such as would excite the fears of a reasonable person. State v. Chesher, supra; State v. Vansickel, supra; State v. Dickens, 23 N.M. 26, 165 P. 850 (1917). The apparent danger must be imminent. Territory v. Baker, supra; State v. Vansickel, supra. The danger must arouse a fear of death or great bodily harm or a fear of peril to life or limb. State v. Chesher, supra; State v. Vansickel, supra. The defendant must in fact entertain such a fear of death or great bodily harm or a fear of peril to life or limb. State v. Chesher, supra; State v. Vansickel, supra. The defendant must act solely upon that fear. State v. Parks, 25 N.M. 395, 183 P. 433 (1919).

The instruction does not require a separate instruction in the event the victim is an innocent bystander, i.e., a person who did not instigate the action which required the defense. Under New Mexico law, if the circumstances would justify the use of deadly force in self-defense, the defendant is not guilty of homicide if he unintentionally kills a third person. State v. Sherwood, 39 N.M. 518, 50 P.2d 968 (1935). See generally, Annot., 55 A.L.R.3d 620 (1974).

The elements of this instruction contain some general principles of self-defense which are often given as separate instructions. For example, the principle of apparent necessity. See California Jury Instructions Criminal, 5.51. In addition, the element of "a reasonable man under the same circumstances as the defendant," includes the principle that the defendant's right to use force may end when the danger ceases or the adversary is disabled. See e.g., State v. Garcia, 83 N.M. 51, 54, 487 P.2d 1356, 1359 (Ct. App. 1971). See also, California Jury Instructions Criminal, 5.52 and 5.53.

Self-defense is not available to an aggressor unless he first tries to stop the fight he started or unless it is necessary to defend himself against an unreasonable force. See State v. Padilla, 90 N.M. 481, 565 P.2d 352, cert. denied, 91 N.M. 3, 569 P.2d 413 (1977) and UJI 14-5191.

The committee found no New Mexico cases specifically holding that the state had the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See generally, Annot., 43 A.L.R.3d 221 (1972). In State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970), a manslaughter case, the court held that the defendant was only required to produce evidence which would raise a reasonable doubt in the minds of the jurors and that the general reasonable doubt instruction was sufficient to place the burden on the state to prove its case. Cf. State v. Parker, 34 N.M. 486, 285 P. 490 (1930). Because these instructions do not require the jury to find the killing was unlawful as one of the elements, a sentence was inserted in this and similar defenses telling the jury that the burden was on the state to prove beyond a reasonable doubt that the defendant did not kill in self-defense. See also, Mullaney v. Wilbur, 421 U.S. 684 (1975).

Since Mullaney was decided, the Supreme Court of the United States upheld a jury instruction in a manslaughter case which placed the burden upon the defendant of proving his affirmative defense by a preponderance of the evidence, stating:

We thus decline to adopt as a constitutional imperative, operative countrywide, that a state must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in the previous cases holding that the due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

UJI 14-5171 (Justifiable homicide; self-defense) must be given if the defendant kills another while defending his property, other than his habitation, if there is evidence that the victim's interference with the defendant's property was accompanied by a threat of death or great bodily harm.

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